Pruett v. Campbell Lumber Co.

• Decision Date: 02 March 1915
• Docket Number: No. 13848.,13848.
• Citation: 188 Mo. App. 347,174 S.W. 164
• Parties: PRUETT v. CAMPBELL LUMBER CO.
• Court: Missouri Court of Appeals

174 S.W. 164

188 Mo. A. 347

PRUETT v. CAMPBELL LUMBER CO.

No. 13848.

St. Louis Court of Appeals, Missouri.

March 2, 1915.

Rehearing Denied March 16, 1915.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

Action by William Pruett against the Campbell Lumber Company. From a judgment for plaintiff, defendant appeals. Reversed, without remanding the cause.

Fort & Zimmerman, of Kennett, for appellant. Bradley & McKay, of Kennett, for respondent.

ALLEN, J.

This is an action for personal injuries sustained by plaintiff while in the defendant's employ as its servant. There was a verdict and judgment below for plaintiff, and defendant appeals.

At the time of plaintiff's injury, the defendant corporation operated a lumber mill where plaintiff, as defendant's employé, was engaged in rolling logs from a railway car upon which they had been transported to the mill; the car having been placed near a "skidway" upon which the logs were dropped. It appears that this car was a "log car," having no bed or platform, but merely "bolsters" upon which the logs were placed. At or near the ends of each such bolster was what is termed a "spike," which was intended to prevent the first or lower layer of logs from rolling off. A chain had been wound about the lower layer of logs and fastened to the car beneath, to hold such logs in position, while in transit; other logs being piled above them.

The car was the property of the St. Louis, Kennett & Southeastern Railway Company, over whose line of railway the logs had been shipped from some point "in the bottoms." There is no evidence as to just where the logs were loaded upon this car, though it may be inferred that they were loaded somewhere in the timberlands in that vicinity. At the time of plaintiff's injury, all of the logs had been removed from the car except the lower layer thereof. Plaintiff went beneath the car to unfasten the chain above mentioned, and after so doing raised his head at the side of the car near the skidway, and was injured by a log which rolled from the car. As to the manner in which he received his injury, plaintiff testified:

"I went under the car, which I did every day, to loosen the chain, and I untied the chain and raised up on my knees to draw the chain out from between the logs on the skidway and the logs on the car, and the log on this car fell down and caught my head between the skidway and the car."

The petition counts upon a breach of defendant's duty with respect to furnishing plaintiff a reasonably safe place to work, and it is averred:

"That the logs were so carelessly loaded on this car by the defendant's foreman in the woods that when the chain was loosed on one side of the car the log which caused the injury rolled, and there being no standards to stop it, and it being loaded out over the edge of the car, it rolled off."

The failure to equip the car with standards is alleged as a further act of negligence on defendant's part; but, as defendant did not own or operate the car, this theory of the case has been abandoned, and it need not be further noticed. The petition also appears to count upon a negligent order of defendant's foreman, and alleges that defendant negligently failed to furnish plaintiff with reasonably safe appliances with which to work; but these averments were not supported by the evidence, and the case proceeds upon the theory alone that defendant violated its duty in respect to furnishing a safe place to work.

I. It is quite apparent that the judgment must be reversed because of error in giving plaintiff's first instruction, the only instruction purporting to cover the question of defendant's liability. This instruction authorizes a recovery if the jury find that plaintiff's injury, if any, "was due to the negligence and carelessness of the defendant company in not furnishing plaintiff with a reasonably safe place to work." Not only does this instruction proceed upon the theory that it is the absolute duty of the master to furnish the servant a reasonably safe place to work, whereas the master's duty is to exercise ordinary care to that end, but it is a mere general declaration of what purports to be the law applicable to a master and servant case, without any application whatsoever to the facts in evidence. It fails to require the jury to find the specific negligence charged, which is alleged to have rendered unsafe the place in which plaintiff was required to work, but, on the contrary, permits a recovery if the jury...